.P33 



^ i^ yg-i/ 



LIBRARY OF CONGBESS 




012 026 530 1 









WRIT OF HABEAS CORPUS. 



SPEECH 



OF 



HOK JAMES A. PEAECE, OP MARYLAND, 



IN THE SENATE OF THE UNITED STATES, JULY 30, 1861. 



The Senate resumed tlic consideration of the joint reso- 
Ititioii (S. No. 1) to approve and confirm certain actsof tlie 
President of the United States for suppressing insurrection 
and rebellion. 

Mr. PEARCE said: 

Mr. President: Before the vote is taken, I 
desire to say to the Senate that it had been my 
purpose from an early day of the session to ad- 
dress them at length on the subject of this reso- 
lution. But J have found myself in a condition 
of health that has made me physically incapable 
of doing so, and I am under medical direction to 
avoid the excitement of public speaking. Never- 
theless, I am not willing, sir, that my vote shall 
be given upon this resolution without saying a 
very few words to explain the position which I 
occupy. 

Mr. President, I am one of those who, from 
the commencement of this controversy, lamented 
the progress of that antagonism of sections which 
seemed to mc from the beginning to promise the 
calamities which have since gathered around us. 
I was most sincerely anxious that the dissolu- 
tion of the Union should not be the result, either 
of the political condition of the two sections of 
the country, or of any other conceivable state 
of things; and I looked upon it as the most im- 
portant interest of my State, of all others, that 
the Union should be maintained in its integrity. 
A small State, situated in the very heart of the 
Union; penetrated by its great bay and its afflu- 
ents, so as to be accessible at all times to those 
whose maritime powercommands the sea; border- 
ing upon one of the most powerful free States of 
this Union, and within a very short distance from 
another, the most powerful of all the States in the 
Union; deeply interested in her trade with several 
southern States which seemed to be likely to be 
cut off from the residuary States; largely inter- 
ested, too, in trade withPennsylvania, with Rhode 
Island, and with other of the northern States; it 
was impossible to conceive a condition of things 
which could be more disastrous to the State of 
Maryland than the dissolution of the Union. 

Sir, if there had been no patriotism in Mary- 
land; if there had been no cherished recollections 



of the glories of the past; of that glorious Revo- 
lution, in which we, small in population and lim- 
ited in territorial extent as we were, had borne a 
not inglorious part; if there had been no attach- 
ment to that flag which we had so long been 
proud to hail as the common standard of the coun- 
try, still our interests were such as bound us in- 
evitably to the cause of the Union. We did not 
believe in the right of peaceful, constitutional 
secession. We saw no mode of separation from 
the Union other than revolution; and we were not 
sensible of any grievances so intolerable as to ab- 
solve us from our allegiance, and require us to 
make, or justify us in making, a revolution, with 
all its uncertainties and dangers and the probable 
or possible consequences, involving not merely 
our future relations, but our peace, security, pros- 
perity, and happiness for all time. I have not 
changed a jot of these opinions and feelings from 
that day to this; and it is the prevailing sentiment 
in my State now — now, when that State has felt 
peculiar evils growing out of the existing con- 
dition of things, and has suffered in violation ot 
private and public rights as no other State has. 
Though in the Union; though loyal to a large de- 
gree; though represented in the other House of 
Congress exclusively by men who are Union 
men, who have been elected as such by enormous 
and unprecedented majorities; though still firm 
in these convictions and in this attachment, my 
Slate has been subjected to what we conceive 
to be positive, arbitrary, causeless, and wanton 
oppressions. 

Now, sir, while I have not changed these sen- 
timents of Union; while I desire, if possible, 
that the Union may be preserved in the face of 
all the probabilities which I confess seem to be 
against it, I am not willing that a course of pro- 
cedure shall be adopted in Maryland, which 1 do 
not believe to be sanctioned by tlie Constitution, 
but at variance with the plain principles of the 
Constitution, and with the essential rights of 
republican liberty. 

The suspension of the privilege of the habeas 
corpus by executive authority is a violation of the 
principles of public freedom which have been 
consecrated for centuries. These principles wene 



2 



P>3 



dear to our Anglo-Saxon forefatliers before the 
the period of Magna Charta. From the days of 
Magna Charta, which, seeking to restore ancient 
rights, provided that no freeman should be taken or 
imprisoned ivithout the lawful judgment of his peers, 
or the law of the land, down to tne declaration of 
our independence, that principle has been dear 
to the freemen of England and America. From 
Magna Charta, about the year 1200, down to the 
revolution of 16G8, there was a constant struggle 
between the people and the Crown for the pres- 
ervation of this privilege, the only one which 
guaranties personal freedom anywhere — the free- 
dom from being arrested and imprisoned, except 
by lawful process. Without this guarantee, no 
Government can be called free; no people can feel 
that sense of security which is indispensable to true 
liberty; and all the boast of constitutional bar- 
riers to despotism are utterly idle and vain. 

I will not undertake to describe the struggles 
between the people and the monarch throughout 
that long period. We know that the power of 
arbitrary imprisonment was an enormous engine 
of oppression, and was most tyrannously used. 
The Commons of England resisted it in all its 
phases; and at last, even in the time of the des- 
potic Stuarts, succeeded in restraining the execu- 
tive authority and snatching from it this pretended 
power to arrest upon the King's command with- 
out process of law. 

In the time of Charles 1, the Petition of Right, 
accepted and signed by the King when the people 
of England were led by an assembly of states- 
men, declared these arbitrary imprisonments to 
be illegal, and thus secured, as was supposed, a 
return to the great rule of Magna Charta. 

We know, too, sir, how royal power, with I 
judicial minions depending upon its pleasure, con- j 
trived to avoid, evade, or delay the operation of 
that rule. De Lolme tells us that the case of an 
obscure individual in the reign of Charles II led 
to another successful struggle between the Com- 
mons and the Crown. One Jenks, a plain citi- 
zen, was charged with uttering mutinous language 
at a meeting in Guildhall, where he had moved a 
petition to the King for a new Parliament. For 
this he was illegally committed by order of the 
privy council, and detained for two months. 
This violation of Anglo-Saxon right stimulated 
_4bat noble struggle of the people which resulted, 
in the thirty-first year of Charles II, in the pas- 
sage of the habeas corpus act, which defined the 
right of the citizen to judicial relief from illegal 
imprisonment, made the duty of the judge imper- 
ative, and imposed a heavy pecuniary penalty upon 
him for denying it. This act only sought to se- 
cure the rights of the citizen which honest judges, 
even before the judicial tenure was made inde- 
pendent of royal authority, had affirmed. It 
was in the reign of Henry VI that an English 
judge, when asked if it was not lawful for one 
to arrest a party upon the command of the King, 
said " No; if 1 were to arrest a man even in the 
presence of the King and by his command, noth- 
ing could save me from the action of false im- 
prisonment which the party would have against 
me." 

Then, air, the declaration of rights and the bill 



of rights, in the time of William III, consecrated 
this principle; and the independence of the judi- 
ciary made it impregnable; and from that day to 
this, never has there been in England a suspen- 
sion of the privilege of habeas corpus, except by 
the voice of Parliament, whose omnipotence com- 
passes everything done by legislative authority. 

There have been many occasions when it has 
been deemed necessary in Great Britain to sus- 
pend the privilege of the habeas corpus. It was 
suspended during the time of William III, and of 
Anne, a period of great intrigue, when the valid- 
ity of the settlement of the Crown, at the revolu- 
tion, was vehemently disputed; during the reign 
of the Georges, when the Scolts' rebellion of 1715 
and 1745 took place; during a portion of the 
stormy periods of the French revolution; in Ire- 
land during the great rebellion of 1798; and upon 
the occasion of the great riots which followed the 
peace of 1815; and its last suspension, I believe, 
was in Ireland'in 1848, during what was called 
Smith O'Brien's rebellion. 

It is well to observe how the English nation, 
attached as they are to the form of monarchy, but 
great and glorious in maintaining their freedom 
against executive authority at all times and against 
all odds, have preserved that principle; and when 
Parliament has suspended the privilege of habeas 
corpus, how carefully the law has been guarded. 
In passing laws for this purpose they have always 
limited the time during which the parties arrested 
for highly treasonable practices, or suspicion of 
them, may be detained without bail or mainprize; 
and in the bill passed in 1848, during the last Irish 
rebellion, they went further, and required that 
such detentions must be of persons taken on war- 
rants signed by the Lord Lieutenant of Ireland, 
or by six counselors of the privy council, or their 
chief secretary. They require, further, as a guard 
for the liberty of the subject, that a copy of the 
warrant thus to be issued shall be transmitted to 
the clerk of the Crown for Dublin, and filed by 
him in the office of the pleas of the Crown in and 
for the city of Dublin. They do not intrust to 
inferior military officers, even in times of rebel- 
lion, this discretion, so liable to abuse, for they 
know and acknowledge that if this inestimable 
privilege is liable to be suspended by the will of 
one individual, it is subject, of course, to the 
caprice, the passion, the malignity, and folly of 
the party, whosoever he may be. How much 
more is it liable to these influences — unjust, un- 
holy, and infamous — when it may be exercised 
by a subordinate officer, no one knows who, for 
an indefinite period, and without any public evi- 
dence of the order under which the odious arrest 
and imprisonment may be effected, as seems to 
be the case with us in this land of republican free- 
dom and written Constitution, ordained for the pur- 
pose, among others, of securing the blessings of 
liberty to the people of the United States and their 
posterity. 

Sir, in my own State of Maryland, where this 
privilege has been suspended, 1 cannot, in most 
instances, trace the order of arrest to any act of 
the President, or of General Scott, or of General 
Banks, or of any superior officer. 1 have, in some 
cases, where the parties were men of peculiar 






position, traced it to General Banks, oi- his pred- 
ecessor; but in general wc cannot trace it. A 
major of New York militia, in one case, wliose 
name I do not remember, and probably shall never 
hear again; some person even of less authority — 
a captain of militia, in one instance, from some 
other State — has arrested a party; and these ar- 
rests have been made, not upon any.lawful assign- 
able cause; not by any warrant for which the party 
may be held thereafter responsible; not by the 
ordinary superior military authority, nor upon 
any suggestion that authorized the suspicion that 
the party was guilty of practices treasonable in 
their nature or dangerous to the Government, but, 
as I believe most firmly, upon intimations con- 
veyed by base and unprincipled men, who, to 
gratify private malignity and personal or political 
hostility, have rendered persons far more respect- 
able than themselves, and quite as loyal too, the 
victims of this tyrannous oppression. What is 
tyranny, sir, if we may not thus designate injust- 
ice practiced upon men, whether communities or 
individuals, by illegal and irresponsible authority? 
That is the very highest and the very worst tyr- 
anny, in my judgment; and it is that for which I 
object to the suspension of the habeus corpus by 
executive authority at this time. 

Mr. President, we thought when we were adopt- 
ing our Declaration of Independence, that we were 
preserving all the principles of Anglo-Saxon lib- 
erty. It was because of the violation of those 
principles*that we entered into the controversy 
with our mother country. One of the causes of 
complaint against George III in the Declaration of 
Independence was, that he had affected to render 
the military independent ofand superior to the civil 
authority; and when wc adopted the Constitution 
of the United States, it was no new thing with us 
to declare that the privilege of the writ of habeas 
corpus should not be suspended, except when in 
cases of rebellion or invasion the public safety 
should require it; and it was nota new thing with 
us that tiiat privilege, thus authorized to be sus- 
pended in certain limited cases, was to be sus- 
pended only by legislative authority. The Con- 
stitution, when it declares that the privilege of the 
•writ o( habeas coiyus shaW not be suspended ex- 
cept when in cases of rebellion or invasion the 
public .safety may require it, does not describe 
the sort of writ which is meant, because it was 
well known that every intelligent freeman under- 
stood only that one writ of habeas corpus, which 
was intended for the protection of the personal 
liberty of the subject or citizen. The Attorney 
General, in an opinion which I see he has given 
to the President, aeks the question, which one of 
the many writs of habeas corpus it was.' as if any 
intelligent man, as if he himself, ever doubted 
which it was. Who supposed that the privilege 
alluded to in the Constitution meant the habeas 
corpus ad respondendum, or the habeas C07-pus ad 
testificandum, or any of the others, which are not , 
worth a button now, being superseded by other. 
processes.' Whoeverdreamed, whatlawyer, what 
commentator, what intelligent politician, what 
statesman, ever dreamed that any other habeas 
corpus was intended by that clause of the Con- 
stitution, than the habeas corpus ad subjiciendum. 



i which is the only remedy for freemen against 
[tyranny and oppression, let it come from indi- 
! viduals out of power or individuals in power.' 

Our fathers, in the amendments to the Consti- 
tution, guarded against the very possibility of 
any abuse of this sort, as they supposed, when 
j they declared, in the fifth amendment to the ar- 
ticles of the Constitution, that no man should be 
! deprived of his liberty without due process of law. 
When they put into the Constitution the provis- 
I ion in regard to the habeas corpus, they did so with 
! the full knowledge of what it was in Englaiid at 
the time when our sturdy ancestors settled in 
America, and what it was in all the States of the 
Union when the Constitution was made. They 
knew that it was the great bulwark of personal 
liberty there and here — the right of rights, as the 
Senator from Kentucky properly called it. A writ 
of right it is, and a right of rights it is, and with- 
out it we have no rights; and its violation by ex- 
ecutive authority is just as much to be tolerated 
as a violation of any other constitutional princi- 
ple, no matter how vital and how sacred it may 
be, if anything can be considered more sacred to 
freemen than personal liberty. 

Besides, sir, the Constitution, while it i-ecog- 
nizes the right of every freeman in the United 
States to the writ of /tafceascorptts for relief against 
imprisonment, for deprivation of personal liberty 
by any restraint upon it, does not provide the 
machinery by which that writ shall be carried into 
operation. It left that to Congress; and Congress 
very properly, with a full understanding of the 
subject, at its first session, I believe, passed the 
habeas corpus act, by which jurisdiction was given 
to the courts of the United States, on that subject; 
and the Supreme Court of the United States have 
said that we must look to the common law for the 
construction of it. The right is therefore both a 
constitutional one and a statutory one. Shall I 
he told that a statutory right can be taken away 
except by a statute.' Who has the right to take 
away, either permanently or temporarily, the au- 
thority of the courts upon that subject.' It is le- 
gislative in its character, and it must be by legis- 
lation that it shall be repealed, and by legislation 
that it shall be suspended, if at all. Suspension 
of a law is but a temporary repeal of it. It is 
therefore legislative in its character, and cannot 
be referred to the power of the Executive, with- ^ 
out confounding these powers of government, 
which it was our special object to keep sepai'^te 
and distinct. It was a legislative power in Eng- 
land. Why is it to be pretended thatit is an ex- 
ecutive one in republican America.' It is beyond 
the power of the Crown under a monarchy; and 
became so after long and arduous struggles of the 
people. Why should it at once elude the legis- 
lative authority here, and settle down into the 
hands of our Executive, without a word in the 
Constitution to indicate such a departure from the 
ijest examples of liberty set us by our English 
forefathers? You will find, upon referring to the 
Constitution, that the provision is found in the 
first article, which relates to the powers of Con- 
gress; and in that section of it which puts pro- 
hibitions upon Congress. I have heard it said 
that there are other things than prohibitions upon 



the Congress in that ninth section of the first 
article; but whoever looks at itcarefuily will see 
that such is not the fact; that they are all prohi- 
bitions upon Congress; and that it is not possi- 
ble to imply, from the fact that some of them look 
to other branches of the Government than Con- 
gress, that therefore this may be assumed to be 
an executive power. 

There are eight clauses in this ninth section of 
the first article. The first relates to the prohibi- 
tion upon Congress as to the migration or import- 
ation of certain persons prior to the year 1808. 
The second is the clause in question, which we 
are now considering. The third relates to bills 
of attainder. Of course, only Congress could pass 
a bill of attainder; and the prohibition against 
passing a bill of attainder is a prohibition upon 
Congress alone. The fourth relates to capitation 
or other direct taxes. The fifth to duties upon 
articles exported from any State. The sixth de- 
clares that no preference shall be given, by any 
regulation of commerce or revenue, to the ports 
of one State over those of another. All these are 
prohibitions upon the power of Congress. The 
seventh, it is said, however, is not a prohibition 
upon the power of Congress. This provides that — 

" No money shall be drawn from tlie Treasury hut in 
consequence of appropriations made by law; and a regular 
statement and account of the receipts and expenditures of 
all public money shall be published from time to time." 

The latter part of this, clearly, is an injunction 
on Congress; the first part of it would be an in- 
junction on the Executive as well as on Congress. 
In regard to this, we must remember that this 
clause, which is said not to be a prohibition upon 
the powers of Congress, was not in the original 
draft of the Constitution; it was brought in by 
the subsequent report of a committee, very late 
in the session of the convention. The whole 
clause was inserted in this ninth section, to which, 
indeed, it is appropriate; for it contains an in- 
junction upon Congress to make annual publi- 
cations of the receipts and expenditures; and it 
does, in effect, prohibit their allowing the purse 
to go into the unfetteredcontrolof the Executive, 
but requires them to direct, by appropriations, 
the purposes to which the public treasure, of which 
they arc the guardians, shall be applied. The 
last clause of this section, the eighth, is, undoubt- 
edly, a prohibition upon Congress. " No title of 
nobility shall be granted by the United States," 
&c. Unless it be contended that our President 
has royal prerogatives, and is like the King of 
England, the fountain of honor, this prohibition 
cannot be supposed to be intended to be on him; 
and the permission in the last part of the clause 
is expressly to Congress to consent to the accept- 
ance, by an oflicer of the United States, of any 
present, emolument, &c., from any king or State. 
These are the whole of the eight clauses in that 
ninth section of the first article, and all relate to 
the power of Congress; so that, while it is legis- 
lative in its character, and cannot be anything 
else than legislative — it cannot be executive, for 
the simple duty of the Executive is to sec that 
the laws are executed, not to make them, nor to 
repeal them, nor to suspend them. While, there- 
fore, it is legislative in its character — legislative 



as to the place in which it is put by the Consti- 
tution, it is also legislative for another reason, 
which may be inferred from the Constitution. 
Tlie second article of the Constitution describes 
the oflice of the President of the United States, 
gives his executive powers and his duties; and 
not one word do we sec there of any authority to 
him to suspend the privilege of this writ, norany- 
thing from which, by the most strained and forced 
construction,it can possibly be implied. So that, 
if we are to find any authority for the suspension, 
by mere executive power, of a constitutional 
provision enforced by legislative enactment, we 
must look to some higher law than the statutes of 
Congressor the Constitution of the United States. 
I find, sir, in the letter addressed by the Attor- 
ney General of the United States to the President, 
that there is a great deal said about coordinate 
branches of the Government, and the unity and 
activity of the Executive, and about the power 
which the President may, under an act of Con- 
gress, exercise in the use of the force which the 
law puts at his command for public purposes; 
and we are gravely told that the President may 
use the Army of the United States to eject in- 
truders — squatters — from the public lands; as if 
there were any analogy between that case and 
this; the one being the case of power given under 
a statute of Congress, the Legislature conferring 
the power upon the President expressly, not in 
violation of any principle of the Constitution , but 
in subordination to it; and the other a case in 
which they have conferred no such power, and 
where they cannot confer any such power. For I 
not only hold that the suspension of the constitu- 
tional and legal provisions in regard to the habeas 
corpus is not executive in its character, and can- 
not be exercised by the President, but that Con- 
gress itself cannot make the exercise of that power 
of suspension legal by any one 'else. It is their 
own power. It is intrusted to them exclusively 
as one of their legislative functions, and they can 
no more assign it than they can assign any legis- 
lative authority with which they are invested. 
The legislative powers of this Government must 
be exercised by Congress, in whom alone the 
Constitution reposes them. Then we are told 
that the President's constitutional oath is to " pre- 
serve, protect, and defend the Constitution of the 
United States, "and that this " implies the posver 
to perform" what he thus solemnly undertakes 
to do; that as it is his duty to put down insur- 
rection, he may, at his discretion, use all the 
means of force which the Constitution and the 
statutes place at his command, and that the man- 
ner in winch he shall use these means depends 
solely upon his own discretion. And from these 
premises the Attorney General assumes — I can- 
not say argues — the opinion that the President 
may, in a rebellion like the present, suspend the 
privilege of persons arrested by his order, upon the 
suspicion which he entertains that they are spies, 
emissaries, oraccomplices of those in arms against 
the Government, and thus suspend the constitu- 
tional provision, the enactment of Congress, and 
the judicial authority conferred thereby. This 
doctrine would have been all-sufficient forCharles I 
or Charles II, and the Commons of England would 



have had no cause for exultation when the petition 
of right was signed, or the habeas corpus act passed , 
which, under this opinion, would have been worth 
only so much blank paper as they were enrolled 
on. It assumes that all provisions of the Con- 
stitution are inferior to that which imposes upon 
him the oath of office, and tiiat the power implied 
from that oath overrides all other powers and pro- 
visions with which it may come in conflict; and 
so this great zeal for tiic preservation of the Con- j 
stitution makes it a thing of wax, to be twisted 
and molded at the discretion of the* Executive, 
instead of an inexorable fundamental law of the 
land, beyond the reach of President or Congress, 
and only to be altered by the people in prescribed 
form and mode. I regret to be obliged to say all-^ 
ihis, because I have always had great respect for 
not only the private but the professional character 
of the Attorney General. 

Equally unfounded in law or fact is the alle- 
gation that the suspension of this constitutional 
privilege by the President was necessary. 

I know that never before in the history of this 
country has it been deemed necessary to suspend 
(he habeas corpus even by Congress; that though | 
upon a message of Mr. Jefferson to Congress, | 
duringthealleged treasonable conspiracy of Aaron | 
Burr, the Senate did pass such a bill, (in secret ; 
session, I think,) it was rejected overwhelmingly i 
by the House of Representatives — the vote being' 
113 to 19. I know, too, that Mr. Jefferson, that \ 
great apostle of liberty, whom so many gentlemen ] 
here- profess to revere as the founder of the polit- . 
ical creed in which they place the most implicit [ 
confidence and faith, declared himself, at the very 
time of the formation of the Constitution, as op- \ 
posed to any suspension whatsoever, even by 
legislative authority, of the privilege of the writ 
of habeas coiyits; declared himself in favor of its ! 
eternal and unremitting force; and, sir, I very i 
much incline to think he was right. I doubt very 
much whether the good to be effected by its sus- 
pension, in any condition of things in which the 
country can be placed, will be at all commensu- 
rate with the evil undoubtedly sure to follow from 
such suspension. If necessity, which is an odious i 
l)lea,knownforhundredsofyearsas" the tyrant's ; 
plea" — a plea by which you may overthrow all 
constitutional provisions — if that plea is efficient 
here; if that is a justification for a violation of 
one provision of the Constitution, it is equally a 
justification for any and all violations of it. As 
well may you justify the President for breaking 
into the Treasury and taking from it'all the mil- 
lions and the very last dollar in it, not in pursu- 
ance of appropriations made bylaw, but witliout 
appropriations, and in the face of appropriations 
made for other purposes, that he may apply it as 
he thinks needful; as well may you do that, under 
the plea of necessity, as justify the suspension 
of the habeas corpus under this plea. I incline to 
think that the necessity in this latter case would 
often be much stronger than it would be in regard 
to the suspension of the personal right of the cit- 
izen. Indeed, sir, the greatest danger is to be 
apprehended from infractions of the law which 
seem to be sanctioned by good motives. It is not 
easy in other cases to make breaches in the Con- 



stitution, but this may be tolerated when pur- 
poses of corruption and oppression are not sup- 
posed to be intended, when a.solemn duty only is 
supposed to prompt a little largeness of construc- 
tion, some straining of the Constitution for a pur- 
pose of high patriotic duty, which disguises the 
danger of the example. But breaches in the Con- 
stitution once made, others are more easy; and 
soon its enemies, with the worst purposes, rush 
in to its destruction. As to the necessity in fact, or 
ratheras to tlie danger to the country of permitting 
to go at large those persons who have been ar- 
rested by order of various military men under the 
alleged authority of the President — I know many 
of these cases, and can confidently say that many 
of the persons arrested are wholly without any 
general personal influence for good or for evil; 
and that they will derive any political import- 
ance which they may acquire solely from the blun- 
ders by which they have been made into polit- 
ical martyrs. Many of them covet political in- 
fluence no more than they do the restraints upon 
their liberty. They wonder at the baseness of the 
unknown informer and the folly of the zealous 
agent of the Executive; butare not the less indig- 
nant at the disregard of law and constitutional 
privilege which leaves them without the time-hon- 
ored remedy for the wrong they suffer in the de- 
privation of their liberty. ^ 

So too, sir, these domiciliary visits, which an- 
equally in violation of a provision of the Consti- 
tution, are sought to be justified by necessity. 
Now, let us see where these things are done. 
Nowhere, so far as I am informed, except in the 
State of Maryland, unless there be some excep- 
tions in the State of Missouri. I believe there 
have been some in that State. I recollect to have 
seen one or two cases of a suspension of the habeas 
corpus there; but chiefly it has been exercised in 
Maryland, a loyal State — a State proved in its loy- 
alty; a State whose remarkable quiet note, under 
all illegal and oppressive practices, is the best proof 
she could give of her loyalty and her submissive- 
ness. Indeed whatever of disloyalty there may 
be in the State of Maryland to the Union grow^ out 
of these very abuses — the suspension of the habeas 
corpxis by executive authority, and these unneces- 
sary, sometimes absurd, and always irritating 
domiciliary visits and searches, which yield no 
public benefit whatever, and tend only to irrita- 
tion, oppression, and mischief. 'n 

It was but the other day that some officer of 
volunteers — I do not knov who — marched some 
three hundred of his men from a ]X)int in one of 
the counties in Maryland to another, a little vil- 
lage, wlier* there are about the same number of 
residents, of every description. This little village 
t'liund itself invested by three hundred armed men 
early in the morning. There was a double object: 
to search for arms, which were not to be found; 
to search houses where there were no arms; and 
to arrest one party, perhaps two, one of whom 
was arrested and carried to a military camp out of 
I the county. Well, sir, two houses were partic- 
! ularly designated as ]iroper to be searched. One 
of them was the house of a gentleman of the bar 
of distinguished ability and liigh cultivation; and 
though I believe he is an extreme southern man 



6 



for that region of Maryland, he nevertheless holds 
this doctrine — that there can be no greater absurd- 
ity possible, in the State of Maryland, than to 
think of getting up an organization in opposition 
to the power of this Government, and in violation 
of its constitutional authority. He has strong 
southern sympathies; that is about the amountof 
it. His house was searched from top to bottom by 
a detective police officer, who happened to be one 
of these three hundred men marched to that point. 
They found nothing, simply because there was no 
conspiracy, no gathering of arms for rebellious 
])urposes, no intention on his part to engage in 
any secret organization against the Government. 
Nevertheless, he felt this searching of his house 
to be an injustice, an affront, and an oppression. 
The other was the case of an old gentleman of 
over eighty years of age, who is now and always 
has been, the strongest Union man of the county. 
He was lying at the time on a sick bed, from 
which his family fear he may never rise. The 
ladies met the officer at the door, and felt very j 
much disposed to resist, if it had been in their I 
power; but finally, when told that his object was ! 
to search for arms, answered promptly: " There { 
are two guns here; one is a bird gun." " That 1 1 
do not want," said the officer. "Then there is 
another gun liere — a drilling gun." "Ah! that 
is what 1 want. 'i "Very well," answered one 1 
of the ladies; " I pledge you my honor I will j 
bring it to you in two or three minutes; but do \ 
not come into the house, for Heaven's sake." It i 
so happened that a company oflitlle boys of eight, i 
ten, or twelve years, were playing the military, 
and drilling with wooden guns; and one of these 
poor little wooden guns was the trophy which the '■ 
lady brought to the officer, very much to his mor- 
tification. I believe he did not care about receiv- 
ing it, though she insisted upon his taking it. i 
There are two cases. Who can suppose that • 
any honest, loyal citizen, had given intbrmation 
against these two gentlemen? Is it not palpable 
that it was owing to the malicious, wanton, and 
wicked interference of some base mischief-maker, 
that the military were dragged some twenty miles, 
and marched back the same distance, for the pur- 
pose of searching these two houses, and looking 
into a little village armory, where they did not 
get a solitary gun, I believe? 
_ Sir, these things have been repeated elsewhere. 
In my own neig-hborhood, three or four hundred 
men, who had gone over in a steamboat from An- 
napolis to one of the. country districts, marched 
into the town of Easton, and on their way, meet- 
ing two gentlemen standing at a gate, arrested 
them, and said: " you must come and march with 
us." " Why?" They chose to give no answer, i 
except to say, that they understood there are se- 
cessionists in the town, and if they chose to fire 
upon them, these gentlemen should be in the front 
rank — take the fire first; and thus, two men, of j 
whom they knew nothing, and who, unquestion- ! 
ably, were not concerned in any treasonable act, ! 
were thus wantonly arrested and marched from j 
their residence to the town, to be contemptuously 
dismissed. An armory, belonging to the State, ' 
was searched and the arms taken. There were 
some arms, I suppose not more than two or three [ 



hundred guns in all, many of which were of little 
value, being old, and having been there from time 
immemorial, with some cannon. Two of these be- 
longed to the commissioners of the county, and 
had been purchased in the year 1832, just after 
a memorable event in Virginia, and were in- 
tended for the defense of the county against in- 
ternal foes. 

Sir, these are but a few of the instances that have 
occurred. I have known houses to be broken open, 
wardrobes^and bureaus to be rudely searched, and 
young men to be arrested, because they talked 
saucily. They were not more mutinous, I pre- 
sume, than poor Jenks, whom the privy council 
put in prison for talking mutinously at Guildhall, 
when he wanted to have a petition presented to 
the King. These young men, without public in- 
fluence, without that position which gives control 
of society, without the ability to command the 
services of a single man in any organization against 
the Government, are seized and taken away from 
their business, one from his farm, another from 
his store, and carried off to Fort McHenry, or 
some other military station, and lodged there, 
without warrant in form of law, or upon affidavit, 
without even a decent ground of suspi<;ion that 
they were affiliated with secessionists in arms, 
or had any intention to associate with them, and 
when, indeed, they were further from violating 
their duty to the Constitution and the law than the 
men who thus ruthlessly violated both. 

In the first case I mentioned, one gentleman 
was captured, taken prisoner, and carried to 
Cockeysville, and there remained for some days; 
and when inquiry was made by his friends, no- 
body knew by whose orders he was taken. The 
President knew nothing of it; the Secretary of 
War knew nothing of it; General Scott knew 
nothing of it; and I think 1 may say without any 
impropriety, was exceedingly sorry to hear that" 
such an act had been committed. It could not be 
traced to any officer of superior authority. Gen- 
eral Banks knew nothing of it; and finally he was 
released by the Secretary of War upon represent- 
ation of the facts to him. But while this and 
similar proceedings have been in progress, while 
these imprisonments have been suffered, irritation 
has been springing up, friends have been dissat- 
isfied, and the people have asked themselves, is 
this the paternal Government that we have a right 
to expect will protect us, or is it one that looks 
upon us as aliens, as conquered foes surrendered 
at discretion, as rebellious subjects who have been 
reduced to a condition of obedience and vassalage? 
I say this, sir, not so much for the Senate as in 
the ho[>e that it may some way or other reach the 
ears of those in power, and leach them the pro- 
priety and the prudence of stopping these irritat- 
ing, vexatious, illegal, and unconstitutional pro- 
ceedings. 

Sir, in my opinion there is, in the State of Ma- 
ryland, at this time, not the slightest probability 
of any further emeutc. No man regrets more than 
I do the riot of the I9th of April. I unhesitat- 
ingly admit that it was illegal; it was in every 
respect wrong; quite as prejudicial to the State of 
Maryland as it was injurious to the Government 
of the United States. JNTo man rejoiced more when 



the organization which followed it was dissipated. 
But 1 do not think that the disturbances of tiiat 
day — the attack of the rioters upon the Massa- 
chusetts soldiers and the subsequent proceedings 
— can, without the grossest outrage, be made the 
pretext for a series of aggressions upon the con- 
stitutional rights of tiie people throughout the 
State. There was a single, unorganized popular 
tumult on the 19th of April. Senators will rec- 
ollect that the mob on that occasion were not or- 
ganized into an armed force. They were armed 
with paving stones and brickbats. Those are not 
the weapons used by conspirators who are organ- 
ized for the deliberate purpose of overthrowing a 
government. As for the few pistols that appeared 
there, they will be found in all tumultuous assem- 
blages that grow into riot. And the after proceed- 
ings by the authorities, however much their pro- 
priety may bo doubted, had at least one effect: 
that of reducing, by the military organization that 
followed , the tumultuary elements of the State into 
such a condition that they could be controlled, 
which, without that military organization, I very 
much fear would not have been the case, and then 
the evil might have been much more serious to the 
Government, the people of Baltimore, and the 
State of Maryland. Be that as it may, I do not 
defend that proceeding or palliate it; but Ldo say 
that however much gentlemen may condemn that 
emeute in Baltimore, it was punished severely on 
the spot; for the blood which 'flowed then was 
more that of the people of Maryland engaged in 
the tumult than those against whom they illegally 
directed the riot. The resentment which was felt 
in the North was natural, but it did not justify 
the threat of razing the city to the ground, nor 
does it justify any other proceedings than legal 
ones for the prosecution of those concerned in it. 
It must be remembered, too, that the President 
himself was satisfied that the authorities of Balti- 
more had acted with perfect loyalty, and that the 
popular excitement there was an unfortunate oc- 
currence, unforeseen by the authorities, and which 
they could not control, though the mayor, the 
marshal of police, and others, risked tiieir lives in 
the effort to control it, and to protect the soldiery 
from the attack. 

Now, sir, here are the police commissioners of 
the city who have been imprisoned for a month, 
and during the session of the grand jury which 
have been finding bills of indictment against per- 
sons suspected of treasonable practices. They have 
found a number of bills (I do not remember how 
many) for treason, but they have found no bill 
against these gentlemen; nor have we heard, from 
any source whatever, any intimation of any spe- 
dfic conduct of theirs which could be declared to 
Be illegal. On the contrary, the only intimation 
upon which I understand their arrest to have been 
founded, is that contained in the proclamation of 
General Banks on the 1st of July, in which he 
says they were supposed to entertain some pur- 
pose not known to the Government, but believed 
10 be detrimental to its peace and security. I 
think that is the language. I know I am right in 
regard to the other words — " some purpose not 
known to the Government." I understand that 
General Banks admitted that there was no chargre 



affecting the integrity of these gentlemen; that 
they had been arrested rather with a view to pros- 
pective events than for anything then done by 
them.*f\.nd yet, sir, not only are these gentlemen 
still suffering illegal confinement, but I see by the 
papers of the morning that they are now being 
transported from the State of Maryland to some 
northern fortress, where they are to be deprived 
of the sympathy and service of their friends, torn 
from the partial associatioq of their families hith- 
erto permitted, and doomed to imprisonment 
among strangers, where kindred and friends can 
no longer cheer and sustain them. Why is this.' 
What prospective event makes this necessary.' 
It is most unusual, extraordinary, and I think 
oppressive. Partisans of the Administration in 
Maryland may defend it; but no one else, how- 
ever earnest and ardent in his attachment to the 
constitutional union of the States, can be other- 
wise than indignant. 

Now, sir, this police organization is a part of 
the State system. With as much authority might 
this Go^rnment undertake to suppress the State 
Legislature itself, and put its members in military 
jails. As well might they suppress the whole 
organization of the different departments of the 
government of the State of Maryland. The State 
is prostrate this moment at the foot of the exec- 
utive power of the United States, and that for no 
reason that I can perceive, except the fact of the 
emeute of the 19th of April. Certainly no con- 
duct on the part of the State of Maryland since 
then has caused any apprehension or surmise, 
that such a state of things prevails there as would 
jystify the violation of the Constitution and the 
suspension of the writ of habeas co-pus, ajad the 
other oppressions which I have described. 

Mr. President, there are other things to which 
I should desire to allude at this time, but, as the 
Senate perceive, I am laboring under difficulties 
which make it very arduous for me to make any 
remarks at all. Nothing but a deep sense of the 
duty which I owe to my constituents, and the 
knowledge that it was expected of me that I 
should say something on this subject, has induced 
me to trouble the Senate at this time. I shall, of 
course, not vote for the joint resolution; and the 
more, because I believe that, if these things which 
have been done by the Executive are legal, there 
is no necessity for Congress to undertake to vali- 
date or ratify them; and, if they were illegal ayd { 
unconstitutional, no p.ower of this Congress ca«^ .-^ 
give them any authority whatsoever. Congress " 
may pass indemnity bills; they may indemnify 
their officers who violate the law by paying all 
expenses whicti may be incurred ; but they cannot 
make an illegal and unconstitutional thing legal 
by a declaration that it is so. That is impossible. 
The doctrine I hold, as to the suspension of the 
habeas corpus, is sustained by the highest judicial 
authority — by Chief Justice Marshall, Justice 
Iredell of the Supreme Court, Judge Story, and 
by the present pure and able Chief Justice. It 
has never been questioned by any known jurist 
of eminent character, unless there be one excep- 
tion in a northern State; and it has been the re- 
ceived doctrine from the origin of the Government 
to the present day. 



}.^^Ri 



'f)Ry 



Op 



Co/vq 



?^ss 



012 



026 



530' 



LIBRARY 




oor 



LIBRARY OF 



CONGRESS 




1^<snm'i1iri0A 



